Many here – and elsewhere – have invoked the Nuremberg princples in condemning Obama’s statement that he will not prosecute CIA officials who were “reasonably” following advice that their conduct was legal. Setting aside the obvious wiggle room in this statement, allow me to point out the problem with this analogy:
Simply put, existing federal law conflicts, limits or at least creates a tension with the Nuremberg principles.
I explain under the fold.
Cross-posted here: http://www.dailykos.com/story/2009/4/18/721605/-The-reason-why-the-Nuremberg-analogy-fails:-it-ignor
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The specific Nuremberg principle at issue here is Principle 4, which states:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Thus, a CIA interrogator who tortures should not be able to avoid responsibility simply because his superior ordered him to torture, right?
Further, the Uniform Code of Military Justice gives military personnel the right to refuse to follow “unlawful orders.”
But consider the “public authority” defense, which is recognized by the federal courts and is specifically acknowledged in the Federal Rules of Criminal Procedure.
Here, is how the Seventh Circuit, for example, explained the defense in its jury instructions (note, I am getting this language from Westlaw, which requires a subscription):
A defendant acts under public authority if:
(1) that defendant is affirmatively told that his/her conduct would be lawful;
(2) the defendant is told this by an official of the [United States] government; [and]
(3) the defendant actually relies on what the official tells him/her in taking the action[; and,
(4) the defendant’s reliance on what he/she was told by the official is reasonable in light of the circumstances].
Now, I hasten to add that just because this defense is available does not mean that the CIA interrogators who tortured would prevail with that defense. As you can see, they would have to establish, among other things, that their reliance on the legal advice was reasonable. And certainly, the availability of the defense, in itself, does not necessarily justify a decision not to prosecute, let alone a decision not to investigate.
Still, it should be clear that there is a tension, if not outright conflict, between the “public authority” defense and Nuremberg Principle 4. The former does, indeed, forgive reasonable reliance on advice from one’s superior that action is legal, while the latter demands more, i.e., that the actor have no “moral choice” but to follow orders.
I’ll conclude by noting what I think are the implications of this tension:
(1) Before we condemn a decision not to prosecute under federal law, we should acknowledge that the “I was just following orders” defense appears more viable in federal courts than international courts;
(2) Prosecutors should consider potential legal defenses before instituting charges (though, again, the existence of a defense alone is merely one factor);
(3) The limits of federal law may provide ammunition to those who would prefer to see prosecutions in international court.